Big Doctor Is Watching

In 1971, as the Vietnam War raged, a Defense Department analyst named Daniel Ellsberg gave the New York Times 47 volumes of secret documents -- the Pentagon Papers -- showing that American politicians had been systematically lying to the public about events in Vietnam for decades. President Richard Nixon responded by authorizing his aides to burglarize the office of Ellsberg's psychiatrist, in an attempt to discredit the DOD analyst. The aides eventually went to prison, Nixon resigned in disgrace, and Congress passed the Privacy Act of 1974, which greatly limited the government's ability to acquire or to use personal information without a court order.

HIPAA has effectively unwritten the Privacy Act in regard to medical records, and America's psychiatrists are leading the charge against it. "An ethical physician would decline to release information to anyone without patient consent," says Dr. Paul S. Appelbaum, outgoing president of the American Psychiatric Association.

"The government can issue regulations, but it can't change the fundamental ethics that the medical profession has held for several thousand years. We are concerned by the [HIPAA Privacy Rule] provision that would allow for the release of medical information anytime the police are trying to identify a suspect. This broad exception would allow computerized medical records to be sifted through by police to seek matches for blood or other health traits."

Although the Supreme Court has found that psychiatric records enjoy the privilege of physician-patient confidentiality, HIPAA extends that privilege only to the actual notes in which a mental health professional records "the contents of conversation during a private counseling session," and only if those notes are kept separately, i.e., not sprinkled about in the rest of a patient's file. HIPAA does not recognize the existence of a psychiatrist-patient privilege (which is similar to the lawyer-client privilege) for "medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date."

This is a shattering change in the classical protections extended to mental health information, says Appelbaum. "For many years, we could say to the police, the FBI, the Secret Service that we don't release information without patient consent or a court order. Law enforcement learned not to ask for such records.

"HIPAA makes it much more likely that doctors and medical facilities will be approached by police and intelligence agencies, and now we have less ammunition to use in the battle to protect patient confidence. The use of administrative subpoenas is a profound change. Police can search medical records without ever having to step before a judge to demonstrate the reasonableness of their request."

Recently, the American Psychoanalytic Association (a national group of 3,500 psychoanalysts not to be conflated with the larger American Psychiatric Association) joined with the Congress of California Seniors, a nonprofit interest group based in Sacramento, in a lawsuit against the federal government. The lawsuit says that HIPAA destroys constitutional protections against governmental abuse of its police powers while it undermines public trust in the integrity of the physician-patient relationship.

Bill Powers of the Congress of California Seniors says that his group's 600,000 retirees are afraid that improper disclosures of their medical and psychiatric records will negatively affect their chances to get jobs, health insurance, and loans. "Under the guise of protecting our privacy rights," says Powers, "the Bush administration is imposing on our rights."

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On the congressional front, conservative Texas Republican Ron Paul is sponsoring a bill in the House of Representatives to repeal HIPAA. Liberal Democrats are backing a brace of bills in the House and the Senate that would make some changes in HIPAA, but that appear to leave the government's nearly unlimited power of intrusion into medical files largely intact.

Until and unless legislation or a court decision significantly changes HIPAA's privacy rules, their use will probably differ from state to state. HIPAA says state laws that are more protective of privacy will trump HIPAA regulations that have weaker privacy provisions. But deciding which law is more protective can be a tricky judgment call.

Should Californians fear that state troopers or local police will use administrative subpoenas to grab their medical records? The state Constitution has a "right to privacy" enshrined in its first paragraph; it requires that the government show probable cause for the search and seizure of personal papers. And in years past, the Legislature has passed strong privacy protections. For instance, California has a statute that says state agencies cannot disclose medical data that identify individual patients without being served with court-approved search warrants.

Oddly, the state government seems intent on weakening those protections.